
XY\kJ . 

< \yfou^/\ \^^°v. 










Class 

Book 






















PRICE lO CENTS. 


OBJECTIONS 


MR JENCKES’ BILL, 

JL . 1 s&t ■ 

FOR THE 

REFORM OF THE CIVIL SERVICE. 




WASHINGTON, D. C. : 

JUDD & DETWEILER, PRINTERS, 
1869. 










MR. JENCKES’ BILL. 


At an early period in our national history, abuses in the details 
of public business, corresponding with the precariousness of 
tenure by which incumbents of all grades hold office in this 
country, attracted the notice of statesmen, and have occasioned 
frequent efforts at reform. And at the present day, so preva¬ 
lent and so well founded is a sense of the evil, that a measure 
which has been brought forward by an intelligent Representa¬ 
tive in Congress from Rhode Island, has been received by the 
country at large with remarkable favor, irrespective of party. 
The writer himself was, in common with the press and public 
men, with few exceptions, so sensible of the mischief, and so 
gratified at the prospect of a remedy, that it is only upon a read¬ 
ing of the bill itself, that he was startled by its extraordinary 
innovations, and induced to offer such objections as can be hur¬ 
ried into publication before the close of discussion. Upon ex¬ 
amining the system proposed by Mr. Jenckes, I perceive some 
minor points on which I am persuaded great inexpediency could 
be demonstrated. But on such, the experiment might be harm¬ 
less, and neither my leisure nor my present purpose extend 
beyond a few considerations involved in the bill, which, if they 
are not here mistaken, are of the utmost importance, and demand 
the gravest and most earnest attention. 

Mr. Jenckes proposes to establish, by statute, a system under 
which, with few exceptions, the inferior offices of Government 
are to be held during good behavior. In order to guard against 
unworthy incumbents, none are to be appointed except from a 
class qualified for office by a certificate of recommendation. 
And to guard against unwarrantable removals, a trial and con¬ 
viction, of inefficiency or misconduct of an incumbent, is provided 



4 


for as a condition precedent. The recommendation for appoint¬ 
ment, and the conviction for removal are to be made by the 
same responsible body. This body is a Board, called, with its 
heady the “ Department of the Civil Service.” If the wisdom 
of the members of this department could be equal to their 
powers, it would yet remain that their virtues must transcend 
all experience. But if they should, we might safely commit all 
government to them. This new department strikes me as a 
conception of extraordinary originality, which it is hardly cred¬ 
ible should have received such slight notice. To this point I 
confine the following remarks. The bill provides: 

“ That from and after the passage of this act, there shall be 
created a new department of the Government of the United 
States, to be called the Department of the Civil Service; that 
the head of said department shall be the Vice President of the 
United States, or in case of a vacancy in said office, the Presi¬ 
dent of the Senate for the time being, who shall perform all the 
duties assigned to him by this act.” 

“ That there shall be appointed by the President, by and 
with the advice and consent of the Senate, a board of four com¬ 
missioners, who shall hold their offices for the term of five 
years, to be called the Civil Service Examination Board,” &c. 

“ That until the confirmation by the Senate of the commis¬ 
sioners authorized to be appointed by this act, the head of said 
department is hereby authorized to appoint persons to perform 
the duties of commissioners temporarily, with the same powers 
and at the same rate of compensation as hereinbefore provided.” 

Provision is made for a clerk, messenger, &c. The salary 
of the Vice President is to be raised to thirteen thousand dol¬ 
lars per annum, and that of each of the commissioners is to be 
five thousand dollars. Thus much for the constitution of this 
department. Some of its powers are as follows: 

“ To prescribe the qualifications requisite for an appointment 
into each branch and grade of the civil service of the United 
States,” &c. 

“To establish rules governing the applications” of persons for 
office, the incidents of their examination, including subjects on 
which it shall be had, with the power and duty to “ divide the 


5 


country into territorial districts, for the purpose of holding ex¬ 
aminations of applicants resident therein, and others, and shall 
designate some convenient and accessible place in each district 
where examinations shall be held.” Promotion in office, also, to 
be regulated wholly by this board, which.has the power, at the 
option of the Civil Service Department, of ordering and con¬ 
ducting “ special examinations.” 

“ That said board shall have power to prescribe, by general 
rules, what misconduct or inefficiency shall be sufficient for the re¬ 
moval or suspension of all officers who come ivithin the provisions 
of this act; and also to establish rules for the manner of pre¬ 
ferring charges for such misconduct or inefficiency, and for the 
trial of the accused, and for determining his position pending 
such trial” (Of course, nothing is to be misconduct or in¬ 
efficiency, unless these rules shall specify it.) 

The board, in their discretion, may avail themselves of the 
assistance of the officers of the army or navy, or civil service, or 
any person they think fit, and all the powers of the board relative 
to examinations may be exercised by any one member of it. And 
the board may, in prescribed cases, delegate all their examining 
powers to any person or persons in their discretion. 

“ That the said board may also, upon reasonable notice to the 
person accused, heor and determine any case of alleged miscon¬ 
duct or inefficiency, under the general rules herein provided for, 
and in such case shall report to the head of the proper Depart¬ 
ment their finding in the matter, and may recommend the sus¬ 
pension or dismissal from office of any person found guilty of 
such misconduct or inefficiency; and such person shall be forth¬ 
with suspended or dismissed by the head of such Department, 
pursuant to such recommendation, and from the filing of such 
report shall receive no compensation for official service except 
from and after the expiration of any term of suspension recom¬ 
mended by such report.” 

It is not clear whether the judicial powers of the board may 
also be exercised by a minority, or by a single member. 

It is immediately perceived that these are very great powers; 
and the first question is: Whether the evil, however refractory, 
is not relatively too inconsiderable to necessitate so powerful an 
enginery? Without doubt, the clerical work of the Govern¬ 
ment is imperfectly performed, and the baleful breath of parti- 


6 


\ 


sanship mixes in the bureaus, with an atmosphere which should 
resemble that of the counting-house^ But, after all, it is the 
public economy which is most offended by the indolence, the 
recklessness or the ignorance of inefficient clerks and inferior 
officers, whose numbers might be less were their efficiency ade¬ 
quate to better methods of business. But is that not a very 
hazardous retrenchment which calls for the creation of a new 
department, with powers at least equal to those of any now exist¬ 
ing ? Does it promise to settle society in the south homogeneous 
with the north, and obviate expensive federal supervision ? Does 
it assure the collection of the internal revenue ? Does it provide 
a plausible method of paying the public debt? These are some 
of the great public objects for which a resort to the erection of 
new departments, with novel and delicate powers, ought to be 
reserved. But my objections are yet much graver. Let us 
consider the new department more closely. 

Organically, it consists of the Vice-President and four com¬ 
missioners, with a clerk, &c. An annual report is to be made 
to Congress, and the action of the board is to be communicated, 
from time to time, as occasion requires, to the several executive 
departments. But the action of the board is in no sense subject 
to any revision, appeal, or control whatsoever. It is literally 
exempt from subordination to the United States, whether acting 
through the judicial, the executive, or the legislative branch of 
the Government, in any matter or under any circumstances. It 
may, indeed, be abolished by Congress, but cannot be controlled 
in its action. So the commissioners, if such would be “ civil 
officers of the United States,” would be liable to impeachment 
and removal, but so are the supreme executive, and the judges 
of the Supreme Court. This establishment is called a “ depart¬ 
ment.” This term is several times used in the Constitution of 
the United States, sometimes qualified. The 18th clause of the 
8th section of Article 1, gives Congress the power “ to make all 
laws which shall be necessary and proper for carrying into execu¬ 
tion the foregoing powers, and all other powers vested by this 
Constitution in the Government of the United States, or in any 
department or officer thereof” In the 1st clause of the 2d section 


7 


of Article 2, the President “ may require the opinion in writing 
of the principal officer in each of the executive departments, upon 
any subject relating to their respective offices,” &c. 

As the Constitution vests no powers in any department, except 
in the sense of the three great branches of Government, it is 
manifest that the first passage above relates to the judiciary, the 
executive, and Congress, as “ departments.” In the proposed 
bill a fourth department, in that sense, is surely not contem¬ 
plated. Yet the establishment is altogether foreign to the ex¬ 
ecutive branch of the Government, and independent of the two 
others. A painful obscurity therefore rests upon the word “de¬ 
partment,” as it is used in the bill before us. It cannot be an 
independent branch of the Government at large, and yet to what 
branch is it subordinate or even appurtenant? With respect to 
its supremacy within its prescribed sphere, it is the organ of 
national sovereignty, as Congress, the Supreme Court, or the 
President is; it cannot rank below them. Yet this bill is not 
intended for a new Constitution of the United States, but for a 
regulation of bureau labor. On the other hand, if the dignity 
of this board be denied, where is its lawful superior? Could 
Congress review one of its judgments and order it to reverse its 
decision? Has the Supreme Court jurisdiction on error or 
appeal? Can the President dictate its deliberations or disobey 
its rescripts ? But again : 

The proposed department has executive powers. Not only 
has it extensive appointing powers, and control in other respects 
over all executive arrangements for its operation, but with the 
single exception of the appointment of the four commissioners, 
and that subject to an exception, at the option of the Senate, the 
law as a whole would be one in the execution of which the 
President would have no agency at all. But the Constitution 
provides that all the “executive power shall be vested in a 
President of the United States of America.” “ He shall take 
care that the laws be faithfully executed.” 

It has judicial powers. A code of laws, to be framed for all 
the cases which could arise involving rights to office within the 
purview of the bill, is to be administered exclusively and with- 


8 


out appeal by this department. And rights, thus for the first 
time created and vested, are not to be passed upon summarily 
and in the necessary manner of exigency or expediency. A 
regular judicial procedure is to be prescribed. The general 
principles of jurisprudence are to be applied, due deliberation 
is to be had, judgment rendered, and execution awarded, in the 
form of a “finding” and “recommendation.” In a word, it is 
to be a court , a court of the United States, and a court of last 
resort, adjudicating sacred personal rights, although its ministers 
are not styled judges, and their tenure of office is limited to five 
years. But the Constitution provides that all of the “judicial 
power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from 
time to time ordain and establish; the judges, both of the Su¬ 
preme and inferior courts, shall hold their offices during good 
behavior,” &c. 

It has legislative powers, peculiar and extensive: 

It is required to know better than the head of any depart¬ 
ment or bureau what precise qualifications are lequired in his 
subordinates, and in every grade of them, permanently and oc¬ 
casionally, and to frame this knowledge into prescribed rules, 
and likewise to prescribe rules for promotion from grade to 
grade, independently of any difference of opinion between the 
immediate or supreme superior of the incumbent and the boarcb 
A still more remarkable delegation of legislative power, imput¬ 
ing to the board impossible wisdom, is proposed. Every form 
of “ misconduct or inefficiency” which could affect the suitable¬ 
ness of any official to hold his office, and every particular junc¬ 
ture of circumstances altering such a case, is to be foreseen, 
classified, and defined by general rules, to be prescribed by the 
board.. All proceedings are to begin on charges only, and 
unless a violation of some one of these rules be proved, the 
official shall retain his office. And pending his trial, the board 
will determine for the head of the office in which the accused is 
employed, what status he should occupy under his superior. 
The board, after trial and conviction of guilt, may nevertheless 
indulge the convict at their pleasure; or they “ may” (so it 


9 


reads) “ recommend” his suspension or dismissal. In that event 
the head of his department has no discretion, but “ shall” “ forth¬ 
with” suspend or dismiss, in obedience to the board’s “ recom¬ 
mendation.” The rules, then, have the force of statute law, 
binding on all branches of the Government and all parties, 
until repealed by the board, or by Congress, and in their legis¬ 
lative quality, are not to be distinguished from other laws. 

This “ Department of the Civil Service” would be, in short, 
a little government of itself—possibly not without the means of 
taking care of itself—certainly with ample means of impressing 
its influence on every form of executive action, in every depart¬ 
ment, and on every executive officer—civil, military, or naval. 

The power of arbitrary removal from office, (excepting judges 
alone,) which was unsuccessfully questioned from the beginning 
of the Government until the passage of the civil-office-tenure 
act, is not expressly restrained by this bill. But its total nega¬ 
tion is the rational predicate of every clause in it, and in view of 
the probable repeal of the tenure act, it would have been better 
to insert the prohibition of the President to remove any officer 
contemplated in the bill, except in obedience to an order of the 
board, as an express clause. We must assume the positive pro- ' 
hibition in order to escape the absurdity of formal charges, 
notice, testimony, hearing, argument, delay^ deliberation, and 
judgment, with permanent record of adjudication, on a matter 
in which no rights are involved that the President is bound to 
respect. Indeed, a co-ordination of powers so unlike, on the 
same subject-matter, would degrade both those of the board and 
of the President, if, indeed, it would not provoke a scandalous 
antagonism. We must therefore assume that with regard to the 
officers contemplated in this bill, the power of the President, or 
of any of his subordinates, over the status or tenure of an incum¬ 
bent is confined to the privilege, in common with the public, of 
preferring and prosecuting charges before an ulterior judica¬ 
ture. The mandatory function of dismissing or suspending 
« forthwith,” in obedience to the board, would not be mistaken 
for a power, even of the lowest discretion. And from this abso¬ 
lute helplessness against disaffected or uncongenial subordinates, 


10 


not even the secretaries and clerks of the President’s household 
are excepted. 

The board, then, are to have plenary power over the incum¬ 
bency and status, and consequently over the whole conduct and 
duties' of the greater part of fifty-two thousand office-holders! 

The most remote public minister, the most distant naval 
officer, the most independent local functionary of the general 
Government, are affected in their operations, their usefulness, 
their efficiency, and their economy, by the clerks in the bureaus, 
at least, in Washington ; for all public business centres in some 
department or other of the Government, and each particular 
piece of business depends upon the regularity of the department, 
and this depends upon the inferior officers. But consider: Im¬ 
portant and delicate negotiations abroad ; complex and elaborate 
fiscal arrangements at home; naval and military operations of 
the utmost urgency and moment; exigencies of state of any de¬ 
scription ; all may vitally depend upon the agency of humble 
subordinates. There is hardly any disaster which procrastina¬ 
tion, treachery, or accident might cast upon a country, which 
might not befall us through the action of clerks in the depart¬ 
ments here. There is hardly any official act which can be wholly 
done in person by the head of a department or office, and but 
few in which he can personally share. The “ secrecy, certainty, 
and celerity,” which have become axiomatic in wise administra¬ 
tion, cannot possibly have assurance in the great business of 
state, without the exact and implicit co-operation of a large 
number of persons working various parts of the official machine, 
under the superintendence of a single will, because, without the 
machinery, nothing can be done, and without this unity there is 
disorder in the machinery. But here is a board, independent of 
all departments, to which alone the personnel of the whole con¬ 
cern are responsible. The head of a department or bureau is to 
have no more power over his subordinates than they have over 
each other in any matter whatsoever. The board give and the 
board take away. The head may, indeed, take issue with his 
private secretary or with an obscure clerk, on a question of busi¬ 
ness committed to his department by law: but if he does, he 


11 


must fight it out with him before the board. When the greatest 
man arraigns the least before a bench of judgment, upon charges 
of personal fault, he feels, and ought to feel, that he must suffer 
personal discredit, or the accused must be convicted. If the 
crime is great, so much the more caution. What man could 
administer a department of this Government distracted by a 
score of criminal or personal litigations in which he was the 
informer? Whose reputation or fortune could bear the risk of 
any cases, except such as could be made out with ease, beyond 
all reasonable doubt, under the rules of evidence? Whose time 
and energy could extend even to such, consistently with his high 
public duties, if more than one? Cases of “ inefficiency and 
misconduct” to be adjudicated in a foreign board, upon the prin¬ 
ciple that every accused is presumed to be efficient and of good 
conduct, until the contrary is established, beyond a doubt, by 
competent legal proof! Would any man in his senses determine 
the tenure of his employes in business on such a principle? If 
private business could not bear such an innovation, can that of 
^he public? And yet the terms “trial,” “charges,” “convic¬ 
tion,” “finding,” and especially the word “guilty,” distinctly 
entitle the accused, in this singular court, to the analogies of the 
criminal law. Nor could they be justly denied him in any tri¬ 
bunal, however rudimental, in which his character was to be 
made a matter of solemn inquiry, unimpeachable decision, and 
permanent record. 

It may be thought that the fair presumption is against any 
abuse by this board or department of its powers; that no one of 
its members would instigate charges against particular subordi¬ 
nates for the purpose of depriving the head of his office of their 
services; that the board, on all matters relating to the methods 
of business, the distribution of labor, the experienced usefulness 
of particular officials, and the inexpediency, from exceptional or 
accidental causes, of a particular promotion or retention in office, 
or the like, would voluntarily defer to the head of the office in 
question, and guide themselves by his opinion; that they would 
not accept a practical supervision of all the details of government, 
and through them of the Government itself, in a spirit of arro- 


12 


gance or self-aggrandizement; that they would not foster in the 
bureaus a ferment of jealousy, heartburning, and disaffection to¬ 
ward superiors, equals, or inferiors; but that they would exert 
their powerful influence for harmonizing personal relations and 
promoting cheerful good order, and that they would especially 
be solicitous to forbear all interference which the quick pride of 
office would resent as meddlesome, thus avoiding the unequal 
contest between them and the head of an office or department, or 
the President himself, in which the latter could not even defend 
himself against the board without the agency of its OAvn depend- 
dents, being nominally his own subordinates, but really those of 
the board. This is so, because their accountability is ultimately 
and exclusively to the board, and not in any sense or in any de¬ 
gree, to any other authority. If now it be recollected that the 
Vice President of the United States is to be the “head” of this 
“ department,” it is really no extravagance to inquire who is to 
be highest, the President or the Vice President? Even in power, 
it is hard to decide which is uppermost. The magistracy con¬ 
trols the sword, but the board controls the magistracy. 

I say, it may be argued that the new department would not 
abuse their power. But if this be granted of the members of it, 
it must be granted on the like principle to the executive incum¬ 
bent for the time being. Yet all the purposes of the “depart¬ 
ment” are resolvable into a reform of executive abuse. The 
Executive then should be restrained from abuse. What is 
to restrain the board? Nothing is guarded with such care by 
lawgivers in all ages, as the hateful intrigues, more irrepressible 
than rebellions, which characterize political history without ex¬ 
ception of nations. But of all contrivances ever framed by 
plotters of sedition, no scheme so invincibly fits the purposes of 
intrigue as this blameless product of well-meaning industry. If 
it be considered that under such a System, an espionage co-ex- 
tensive with all the bureaus and divisions of national business 
would be the voluntary tribute of sycophancy to power; that 
the right to suspend any one or any number of forty thousand 
officials, even though afterwards acquitting him or them, with 
no foundation but charges easily and irresponsibly procured, 


would compel any one of such officials to resist his superior 
rather than offend the board ; and that if there be any restraint 
on the board, at least there is none whatever which could take 
effect until after the mischief was consummated, and its success 
had become, perhaps, its defiance—the discerning reader will 
perceive great opportunities of dangerous intrigue. 

Objections multiply with reflection. Does the evil which this 
startling measure proposes to reform justify the hazard of intro¬ 
ducing, for the first time in this country, a systematic and per¬ 
manent separation of the official class from society at large? 
Only the obvious necessity of provision for military defense has 
ever upheld the West Point Academy against the popular dis¬ 
like of a segregated and salaried order of men. The multiply¬ 
ing hordes of civil officers, under the presidency of a central 
department, without a superior, and separated from the miscel¬ 
laneous interests and vicissitudes of society, would certainly 
introduce for better or worse, a new, powerful, and tenacious 
influence on public affairs at large. 

When the Vice President becomes President, a sort of combi¬ 
nation of the Senate and this department, under one head, would 
result; the duties of the President of the Senate, under those 
circumstances, being further complicated by his interests and 
obligations as the Senator of a State. Moreover, if it please 
the Senate, now or hereafter, in any case of vacancy of the com¬ 
missioners, to deprive the President of the only function the 
bill allows him for its execution, and give the power to its own 
presiding officer of appointing his commissioners, the Senate 
would have but to delay confirmation of nominations made by 
the President. Were the bill to become a law now, for example, 
the present Presiding Officer of the Senate might immediately 
appoint commissioners, “ temporarily” organize the “ depart¬ 
ment,” and put it to work. The present Chief Magistrate might 
nominate, but the Senate would probably fail to confirm his 
nominations. The succeeding incumbent of the executive office 
might nominate, but unless the Senate should choose to confirm, 
the thus created and existing board would continue. At the 
end of five years, the same process might be repeated, and so on. 


14 


If any mistake is made by this strange system , the Executive would 
lose forever all share in correcting the error. 

And what are we even promised in return for risking this 
astonishing expedient? The corruptions which have reached a 
magnitude too stupendous for popular apprehension—demonstra¬ 
bly more than the plunder of a hundred millions a year in 
revenue alone—would, at least, not be restrained by the utmost 
success of it; for the official class notoriously implicated are the 
higher officers who are excluded from the bill. It is but a 
truism, that unless that class be replaced by better men, bad will 
go to worse, and worse will inevitably reach the worst. But 
who, fit for vigorous and reformatory administration in his 
office, would accept the responsibility of a concern in which he 
could exert no potential agency over his own subordinates? 
And if he accepted, what could he do? And what if, pro¬ 
tected by the misapplied principle of conclusive presumption of 
rectitude until proved in a court to be guilty, the good-behavior 
class should—as they would—learn to disregard the displeasure, 
the suspicion, even the moral certainty of their chief, as long as 
they could cover their tracks and keep him from getting legal 
proof against them? They could combine against their supe¬ 
riors, the board itself, and those of their own number who should 
stand out, who could easily be terrorized by threatened charges 
before the board. The plan, it seems to me, would work as a 
general license for corruption. 

But I must hasten to the conclusion; at once the most deli¬ 
cate and the most impressive of all the reflections raised by Mr. 
Jenckes’ measure. 

All experience of human nature and of government admon¬ 
ishes us that spontaneous and irresistible influences would force 
the President and Vice-President, for the time being, into 
antagonism, should this system obtain. That omnipresent and 
all but omnipotent agency, which goes under the name of influ¬ 
ence, is presupposed by every statute in existence. It is found 
in society as warmth is found in a crowd. What is to be done 
with it under this system? Does the bill suppose it is to disap¬ 
pear? Certainly but little of it would conciliate the President 


15 


any more. Then, where will it go? Would it not seek to move 
a power which, without the agency of the. House of Represen¬ 
tatives, in which the Constitution has vested the sole right to 
charge official misconduct against civil officers, could impeach 
and remove nearly all the officers of the Government? A 
power which could constrain the President of the United States 
in his Chair to conform to its will, or else jeopard his plans and 
impede his action, through agents of its own, or through inter¬ 
ference with agents of his? A power which could make a law 
in a moment and in secrecy, especially for him to disobey, thereby 
exposing himself to a constitutional impeachment and removal' 
from office for disobedience to some ill-advised or sinister order? 
And is the influence which follows and conciliates this tremen¬ 
dous power, wherever it is, to stand abashed before the five men 
who may make up this department, while the entire* measure 
un ler consideration affirms that the iapst exalted purity and iron 
steadfastness which the Presidency may every mmand, must pro¬ 
bably yield before that influence? In a word, is it pocJhle that 
a President and Vice-President, standing in such relations, 
should not, through all their respective adherents and depen¬ 
dents regard each other with a fearful jealousy? Would the 
duty of either allow him to trust the other ? In a word, Mr. 
Jenckes’ well-intended reform of the shop-regulations of the 
Federal establishment, may be fairly denominated a bill to divide 
the Executive office of the . United States between the President and 
Vice-President, so as to leave performance to the former, while 
vesting management in the latter . Bead the bill. 

Civis. 







LIBRARY OF CONGRESS 


0 006 718 562 6 


































